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OCDW 01.30.17

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

OKLAHOMA

Kassady Lesiter v. The Hon. Thad Balkman, No. MA-2016-996 (Okl.Cr., January 18, 2017) (unpublished): Extraordinary Writs; Sentence Modification: Interesting case out Cleveland County where Judge Balkman included an 18-month review as part of the judgment in a case involving a guilty plea to Robbery with a Weapon and Assault and Battery with a Deadly Weapon. When it came time for the review, the State asserted that the court had no jurisdiction to hear it without approval of the State, which is what the law is on sentence modifications after one year. Under the facts of this case, the Court turned the tables on the State regarding waiver, holding that at the time of sentencing the review was scheduled and made part of the judgment of sentence, to which the State did not object; thus, the State “essentially agreed” to this provision of the judgment and sentence. The Court granted the writ and remanded to the district court to hold a hearing on his “one year review.”

Jimmy Lee Fields v. State, No. F-2016-42 (Okl.Cr., January 19, 2017) (unpublished): Burks Notice and Bad Acts: Fields was convicted by jury in Tulsa County (the Hon. Sharon Holmes, presiding) of Child Sexual Abuse and sentenced to LWOP. The State sought to present sexual propensity evidence under 2414, but that section requires 15-days notice, not the usual 10-days notice of regular Burks “other crimes or bad acts” evidence, thus the district court excluded it. However, since the state complied with the 10-day notice of 2404, it simply sought to introduce the evidence under that rule and the district court, and the OCCA, agreed. NOTE: Judge Lumpkin authored this judicial joke of an opinion and counseled “prosecutors throughout the State” to take heed of the difference in notice time frames. The opinion is a joke because there is absolutely no reason for any prosecutor in this State to pay attention to the 15-day notice requirement under 2414. The 15-day time frame to give notice under 2414 is dead-letter if the State complies with the 10-day notice under Burks—it comes in anyway under 2404, which is clearly not how the Legislature intended it to be, but how it is under this Court.

David Edward Bloebaum v. State, No. F-2014-989 (Okl.Cr., January 24, 2017) (unpublished): Self-Defense: Bloebaum was convicted by jury in Oklahoma County (the Hon. Timothy R. Henderson, presiding) of Murder in the First Degree and Carrying a Firearm Unlawfully. This case appears to involve a road-rage incident where the accused asserted immunity under the Stand Your Ground law, which was denied by the trial court. In this series of opinions, the fractured Court denied relief, but continued to deal with this area of the law in unpublished opinions, including this one where the Court followed Colorado authority and established the burden of proof as being on the accused to prove by a preponderance of the evidence that he is entitled to immunity. Also, the Court held that appellate review of a claim of immunity is limited to the record of the pre-trial hearing, which presumably means that trial evidence will not be considered on appeal. NOTE: There is an amalgam of concurring opinions in this case, and it is clear that the Court remains fractured in its approach to these cases. Notably, Judges Lewis, Johnson, and Smith are still of the view that the pre-trial appeal via writ approved in the unpublished Ramos case is still viable.

Smiley v. State, 2017 OK CR 2 (January 23, 2017): Suspended Sentences: In this revocation case, Smiley waived the 20-day rule upon arraignment at the State’s application to revoke. However, the State filed an amended application, for which he was not arraigned, and therefore did not waive the 20-day requirement. In this opinion, the Court affirmed, holding that there is no requirement of a second waiver on an amended application; only that the probationer be given a reasonable amount of time to prepare a defense (which he was in this case).

TENTH CIRCUIT

United States v. Michael Kevin Harris, No. 16-1237 (10th Cir., January 4, 2017) (Published) (Tymkovich, C.J., Ebel & Bacharach): Federal Sentencing Guidelines (Reasonableness): Harris was “serial bank robber” who pled guilty to two counts of bank robbery, but sought in-patient treatment for drugs and alcohol prior to sentencing, which was a success. This prompted the district court to sentence him to time-served, with credit for the 33-days he spent in pre-trial detention. The Government appealed the sentence as unreasonable short, and in this opinion the panel agreed and reversed.

Marcus Washington v. Raymond Roberts, No. 15-3097 (10th Cir., January 9, 2017) (Published) (Hartz, Bacharach & McHugh): Peremptory Challenges: Denial of state habeas petition is affirmed over claims relating to: 1) peremptory challenges under Batson; 2) a Miranda claim (he was not in custody); 3) IAC; and 4) prosecutorial misconduct. NOTE: The discussion of the Batson claim is interesting because the panel indicated that it would likely have granted relief were the case on direct appeal, rather than having to give deference to the Kansas Supreme Court via the AEDPA. The legal issue is significant because most courts hold that Batson requires that racial discrimination in peremptory challenges be only a significant motivation by the prosecutor, but the Kansas Supreme Court held that Batson requires it to be the sole motivation. The panel held that the Supreme Court has not answered this question, so the opinion of the Kansas Supreme Court is not unreasonable.

United States v. John Eugene Walker, No. 15-4171 (10th Cir., January 4, 2017) (Published) (Hartz, Bacharach & Moritz): Federal Sentencing Guidelines (Crime of Violence): Robbery under Colorado law is a crime of violence under the ACCA. NOTE: The panel recognized that the federal circuit courts of appeal have reached varying conclusions on this issue.

UNITED STATES SUPREME COURT

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

No new cases.

OTHER CASES OF NOTE

Tiofila Santillana v. Jody Upton, Warden, No. 15-10606 (5th Cir., January 16, 2017): Retroactivity (Habeas Corpus): In this habeas case, the panel held that Burrage v. United States, 134 S.Ct. 881 (2014), which held that drug distribution must be a but-for cause of injury or death in order for a penalty enhancement to apply, is retroactively applicable to cases on collateral review.

United States v. Euneisha Hearns, No. 16-40222 (5th Cir., January 9, 2017): Federal Sentencing Guidelines (PSR): Sentence is vacated because the district court relied on bare allegations contained in the PSR to support an enhancement.

VICTORIES

VIRGINIA BANKS, Stillwater, secured a not guilty verdict in a drug proceeds case and a hung jury on Trafficking in Stillwater—when the client was facing LWOP because of his priors. Nice work, Virginia!

BRIAN SALVANT, Ft. Worth, Texas, and DAVID MCKENZIE, OKC, tried a case to a jury in front of the Hon. Cindy Truong last week. The client was accused of Assault and Battery on a Valley Brook police officer, Possession of Marijuana, and Resisting Arrest. The defense was that a traffic stop was racial profiling and that the officer had in fact assaulted the accused. The jury acquitted on the felony count against the police officer and the Possession of Marijuana count, but convicted on resisting arrest and given 30 days in jail. David reported that the prosecutor was Matthew Adams, who used all five peremptory challenges on minority jurors over objection, which is a practice pointer to pay attention to how the State uses its peremptory challenges at trial (you have to object and force the State to proffer a race-neutral reason). Terrific work, David and Brian!

HEARSAY

RIP FROSTY TROY: The “diminutive firebrand who became an Oklahoma journalism giant” passed away on January 20, 2017, at the age of 83. He was a true free-thinker and contributed a great deal to the free-flow of news and opinion in our State for a very long time, and in his own inimitable style.

FINALISTS: Gov. Fallin has received three names as finalists for the vacant seat on the Oklahoma Supreme Court as a result of the retirement of Justice Steven Taylor: Patrick Wyrick (Oklahoma Solicitor General), Hon. Mark Campbell (Bryan County District Judge), and Jonathan Sullivan (LeFlore County District Judge).

DOC COSTS: The costs for DOC’s aging population (70 years +) reached $1.8 million last year; also, the shortage of correctional officers has reached 30%.

TERM LIMITS: An Oklahoma lawmaker has proposed a 24-year term limit for Sheriffs, District Attorneys, and other county officials.

OFFICER ARRESTED: A police officer in Paoli has been arrested for sexually abusing a disabled man.

BODY CAMS: The Pottawatomie County Sheriff has updated the body-cam technology for his deputies.

NEW JAIL: Love County has broken ground on a new jail—called a “Justice Center.”

NOTIFICATION: An Oklahoma lawmaker seeks to strengthen victim notification policies; also, another Oklahoma lawmaker wants to redact the cause of death section of autopsy reports made to the public.

INCARCERATION PERSPECTIVES: District Attorney Mike Fields spoke at a Legislative Breakfast hosted by the Piedmont Chamber of Commerce, and indicated that recent criminal justice reforms do not address a central problem in Oklahoma’s incarceration rate, particularly among women, whom 90% of female prisoners are domestic abuse victims. That is an astounding number that I had not seen before.

CELL PHONE EVIDENCE: Two brothers who are investigators in Muskogee use technology to recover data from cell phones. Like computers, nothing is ever really deleted from cell phones and can be recovered.

SOAR: The Southern Oklahoma Addiction Recovery program in Ada, Oklahoma, is working.

JAILER CHARGED: An Osage County jailer has been charged with stealing cellphones from inmates.

LEGAL HELP: Attorney Tracey Langford will be the attorney for the new Student Legal Services program offered at O.U.

INCITING VIOLENCE: Moore Police have accused the widow of a man they killed in front of the Warren Theater of inciting violence by posting a video on Facebook.

WACKY NEWS

PLAIN TALK: The mayor of Guymon is in hot water for saying that the biggest problem in the town is the same white trash that has lived here forever.

BAD DRIVER: Adjusting the radio? No. Texting? Nah. Nothing so mundane for a Salina man who was swerving over the road—while “trying to shoot up.”

TRAFFIC STOPS: Nice article detailing the memoirs of a Tulsa-area Trooper and the wacky/crazy traffic stops he has made over the years.

CALLED OUT: A Muskogee “call out” page, in which a business can be “called out” for poor service, gets out of hand.

TOO HIGH: Two men did a good deed by bringing in prescription meds to an inmate at the Marshall County Jail—it is just unfortunate that they were both high on meth at the time.

BAD HIRE: An inmate at the Pottawatomie County Jail hired his cellie to murder a witness against him—and his cellie promptly went to the police. Can’t trust nobody.

MINI-BAT: A juvenile robbed a convenience store with a mini-bat in Oklahoma City. The pic looks odd that anyone could take this kid seriously.

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ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

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